Citation Nr: 0122238
Decision Date: 09/10/01 Archive Date: 09/19/01
DOCKET NO. 98-15 286 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUES
1. Entitlement to an increased evaluation for bilateral
hearing loss, currently evaluated as 20 percent disabling.
2. Entitlement to an effective date prior to December 20,
1999, for an award of a 20 percent evaluation for bilateral
hearing loss.
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
M.S. Lane, Associate Counsel
INTRODUCTION
The veteran served on active duty from March 1959 to March
1961.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a June 1998 rating decision by the Department
of Veterans Affairs (VA) Regional Office (RO), which granted
a 10 percent disability rating for service-connected
bilateral hearing loss. The veteran subsequently perfected a
timely appeal regarding the disability rating assigned.
In a February 2000 rating decision, the RO granted an
increased evaluation of 20 percent for the veteran's service-
connected bilateral hearing loss and assigned an effective
date of December 20, 1999. The United States Court of
Appeals for Veterans Claims (Court) has held that, where a
veteran has filed a notice of disagreement as to the
assignment of a disability evaluation, a subsequent rating
decision awarding a higher rating, but less than the maximum
available benefit, does not abrogate the pending appeal. See
AB v. Brown, 6 Vet. App. 35, 38 (1993). Consequently, as the
veteran has not withdrawn his claim for an increased rating
for bilateral hearing loss, that issue remains in appellate
status.
Following the February 2000 rating decision, the veteran's
representative submitted a statement expressing disagreement
with the assignment of an effective date of December 20,
1999, for the grant of a 20 percent evaluation for bilateral
hearing loss. In April 2001, the RO responded by issuing a
Statement of the Case, and, in May 2001, the veteran
submitted a timely Substantive Appeal regarding this issue.
Accordingly, the Board finds that the issue of entitlement to
an earlier effective date for an award of a 20 percent
evaluation for bilateral hearing loss is also presently on
appeal.
FINDINGS OF FACT
1. The competent and probative evidence of record
demonstrates that the veteran's bilateral hearing loss is
manifested by no more than level V hearing in the right ear
and level V hearing in the left ear.
2. The veteran's claim of entitlement to a compensable
evaluation for bilateral hearing loss was received on January
9, 1998.
3. It is not factually ascertainable that a compensable
evaluation was warranted for the veteran's bilateral hearing
loss at any time during the year immediately prior to the
date on which he filed his claim for an increased evaluation.
4. The competent and probative evidence of record does not
show that the veteran's bilateral hearing loss was manifested
by more than level V hearing in the right ear and level IV
hearing in the left ear for the period from January 9, 1998,
to December 19, 1999.
CONCLUSIONS OF LAW
1. The criteria for an evaluation in excess of 20 percent
for bilateral hearing loss are not met. 38 U.S.C.A. § 1155
(West 1991); 38 C.F.R. §§ 4.85-4.87, Diagnostic Code 6100
(1998); 38 C.F.R. §§ 4.85-4.87, Diagnostic Code 6100 (2000).
2. The criteria for an effective date prior to December 20,
1999, for the assignment of a 20 percent disability
evaluation for bilateral hearing loss are not met.
38 U.S.C.A. § 5110 (West 1991 & Supp. 2001); 38 C.F.R. §
3.400 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Factual Background
The record reflects that, in April 1962, the RO granted
service connection for bilateral hearing loss and assigned a
noncompensable evaluation. The veteran did not appeal that
decision.
On January 9, 1998, the veteran telephoned the RO, and
indicated he wanted a compensable evaluation for his service-
connected bilateral hearing loss. At that time, he reported
that he had been receiving ongoing medical treatment from VA.
The RO subsequently obtained the veteran's VA treatment
records, which show that he had received treatment for a
variety of disabilities throughout 1997 and 1998. In an
Audiology Note dated in March 1998, it was noted that the
veteran had a longstanding history of severe, bilateral
sensorineural hearing loss. The VA examiner indicated that
he had reevaluated the veteran, and found no evidence of a
substantive decrease in hearing since a previous evaluation
was conducted in June 1996. The examiner found that the
veteran's word recognition remained good, while soundfield
testing revealed poor performance in the unaided condition.
On an authorized audiological evaluation conducted in March
1998, pure tone thresholds, in decibels, were as follows:
HERTZ
1000
2000
3000
4000
RIGHT
35
75
85
80
LEFT
35
80
90
90
Speech audiometry revealed speech recognition ability of 80
percent in the right ear and of 76 in the left ear.
In April 1998, the veteran was provided with a VA
audiological evaluation for the specific purpose of
determining the current severity of his bilateral hearing
loss. The VA examiner noted that the veteran had a history
of bilateral hearing loss since being exposed to Howitzer
fire during service. Pure tone thresholds, in decibels, were
noted to be as follows:
HERTZ
1000
2000
3000
4000
RIGHT
45
70
90
100
LEFT
45
85
100
100
The VA examiner noted an average hearing loss of 76.25
decibels in the right ear and 82.5 decibels in the left ear.
Speech audiometry revealed speech recognition ability of 80
percent in the right ear and of 88 in the left ear. The VA
examiner concluded that the veteran had bilateral
sensorineural hearing loss ranging from a mild extent in the
low frequencies to a profound extent in the high frequencies.
In the June 1998 rating decision, the RO granted an increased
evaluation, 10 percent, for the veteran's service-connected
bilateral hearing loss. He subsequently perfected a timely
appeal regarding this decision.
On December 20, 1999, the veteran underwent another VA
audiological evaluation. Pure tone thresholds, in decibels,
were found to be as follows:
HERTZ
1000
2000
3000
4000
RIGHT
50
75
90
95
LEFT
45
85
95
95
The VA examiner noted an average hearing loss of 77.5
decibels in the right ear and 80 decibels in the left ear.
Speech audiometry revealed speech recognition ability of 72
percent in the right ear and of 76 in the left ear.
In the February 2000 rating decision, the RO granted an
increased evaluation, 20 percent, for the veteran's service-
connected bilateral hearing loss. The RO granted an
effective date of December 20, 1999, because the veteran's
increased evaluation was based upon the results of the VA
audiological evaluation conducted on that date. The RO noted
that the medical evidence of record prior to December 20,
1999, did not support a disability rating in excess of 10
percent for his service-connected bilateral hearing loss.
Thereafter, the veteran perfected a timely appeal regarding
the disability rating assigned.
Analysis
I. Preliminary Matters
During the pendency of this appeal, the President signed the
Veterans Claims Assistance Act of 2000 (VCAA), which provides
that, upon receipt of a complete or substantially complete
application, the Secretary shall notify the claimant and the
claimant's representative, if any, of any information, and
any medical or lay evidence, not previously provided to the
Secretary that is necessary to substantiate the claim.
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126
(West Supp. 2001). Regulations implementing the VCAA are now
published at 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001)
(to be codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and
3.326). Except as specifically noted, the new regulations
are effective November 9, 2000. The Act also requires the
Secretary to make reasonable efforts to assist the claimant
in obtaining evidence necessary to substantiate a claim for
benefits, unless no reasonable possibility exists that such
assistance would aid in substantiating the claim.
38 U.S.C.A. § 5103A (West Supp. 2001).
The Board notes that the veteran was advised, by virtue of
the Statements of the Case and Supplemental Statement of the
Case issued during the pendency of this appeal, of what the
evidence must show in order to substantiate his claims.
Accordingly, the Board believes that VA has no outstanding
duty to inform the veteran or his representative that any
additional information or evidence is needed to substantiate
his claim. 38 U.S.C.A. § 5103 (West Supp 2001).
Furthermore, the Board finds that there is ample medical and
other evidence of record on which to decide the claim. The
veteran has been provided with two VA audiological
examinations, and neither he nor his representative have
alluded to any additional records that have not been obtained
and which would be pertinent to the present claims.
Therefore the Board finds that all facts that are relevant to
these issues have been properly developed, and that no
further action is required in order to comply with VA's duty
to assist. 38 U.S.C.A. § 5103A (West Supp 2001).
Because the RO has not had the opportunity to adjudicate the
veteran's claims pursuant to the new legislation, the Board
has considered the applicability of Bernard v. Brown,
4 Vet. App. 384, 393-394 (1993). In Bernard, the Court held
that, before the Board addresses in a decision a question
that has not been addressed by the RO, it must consider
whether the claimant has been given adequate notice of the
need to submit evidence or argument, an opportunity to submit
such evidence or argument, and an opportunity to address the
question at a hearing, and whether the claimant has been
prejudiced by any denials of those opportunities. As
discussed in detail above, the Board has reviewed the
evidence of record and determined that all notification and
development actions required by the new legislation appear to
have been completed in full. Thus, the Board believes that
we may proceed with a decision in this case, without
prejudice to the veteran.
Accordingly, we find that VA has satisfied its duty to assist
the veteran in apprising him as to the evidence needed, and
in obtaining evidence pertaining to his claim, under both
former law and the new VCAA. 38 U.S.C.A. § 5103, 5103A,
5107(a) (West Supp 2001). The Board therefore finds that no
useful purpose would be served in remanding this matter for
yet more development. Such a remand would result in
unnecessarily imposing additional burdens on VA, with no
benefit flowing to the appellant. The Court of Appeals for
Veterans Claims has held that such remands are to be avoided.
See Winters v. West, 12 Vet. App. 203 (1999) (en banc),
vacated on other grounds sub nom. Winters v. Gober, 219 F.3d
1375 (Fed. Cir. 2000); Soyini v. Derwinski, 1 Vet. App. 540,
546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
It is the Board's responsibility to evaluate the entire
record on appeal. See 38 U.S.C.A. § 7104(a) (West 1991 &
Supp. 2000). When there is an approximate balance in the
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant. 38
U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102 (2000).
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court
of Appeals for Veterans Claims held that a veteran need only
demonstrate that there is an "approximate balance of
positive and negative evidence" in order to prevail. The
Court has also stated, "It is clear that to deny a claim on
its merits, the evidence must preponderate against the
claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996),
citing Gilbert.
II. Entitlement to an increased evaluation for bilateral
hearing loss
The veteran is seeking an increased disability rating for his
service-connected bilateral hearing loss. He essentially
contends that his hearing loss is more severe than is
contemplated by the 20 percent disability rating currently
assigned.
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 38
C.F.R. § 4.1 (2000) requires that each disability be viewed
in relation to its history, and that there be emphasis upon
the limitation of activity imposed by the disabling
condition. 38 C.F.R. § 4.2 (2000) requires that medical
reports be interpreted in light of the entire recorded
history, and that each disability must be considered from the
point of view of the veteran's working or seeking work.
Separate diagnostic codes identify the various disabilities.
Where there is a question as to which of two disability
evaluations shall be applied, the higher evaluation is to be
assigned if the disability picture more nearly approximates
the criteria required for that rating. 38 C.F.R. § 4.7
(2000). Otherwise, the lower rating is to be assigned.
The requirements for evaluation of the complete medical
history of the claimant's condition operate to protect
claimants against adverse decisions based upon a single,
incomplete, or inaccurate report and to enable VA to make a
more precise evaluation of the level of the disability and of
any changes in the condition. Schafrath v. Derwinski, 1
Vet. App. 589 (1991). Moreover, VA has a duty to acknowledge
and consider all regulations which are potentially applicable
through the assertions and issues raised in the record, and
to explain the reasons and bases for its conclusions.
Effective June 10, 1999, during the pendency of this appeal,
VA's Rating Schedule, 38 C.F.R. Part 4, was amended with
regard to evaluating hearing impairment and other diseases of
the ear. 64 Fed. Reg. 25,202-210 (1999) (codified at 38
C.F.R. §§ 4.85-4.87 (2000)). In determining which version of
the regulations to apply to the facts of this case, the Board
notes that the U.S. Court of Appeals for Veterans Claims has
held that, where pertinent law or regulation changes after a
claim has been filed or reopened and before the
administrative or judicial appeal process has been concluded,
the version most favorable to the appellant will apply unless
Congress provided otherwise or permitted the Secretary of
Veterans Affairs to do otherwise and the Secretary has done
so. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991).
In this instance, neither Congress nor the Secretary has
directed which regulations are to be applied under the
circumstances of this case. The version most favorable to
the appellant must therefore be considered. However,
pursuant to 38 U.S.C.A. § 5110(g), the Board observes that,
for any date prior to June 10, 1999, VA cannot apply the
revised provisions of the hearing-loss rating schedule, even
if they are more favorable. See VAOPGCPREC 3-00 (Apr. 10,
2000); Rhodan v. West, 12 Vet. App. 55, 57 (1998), appeal
dismissed, No. 99-7041 (Fed. Cir. Oct. 28, 1999) (unpublished
opinion) (VA may not apply revised schedular criteria to a
claim prior to the effective date of the amended
regulations). See also 38 U.S.C.A. § 7104(c) (West 1991); 38
C.F.R. § 14.507 (2000) (precedential opinions of the General
Counsel are binding on the Board).
The Board finds that the change in regulation was not a
substantive change regarding the portion of the regulations
pertinent to this veteran's claim. See 62 Fed. Reg. at
25,202, wherein the Secretary stated that "[t]he revisions of
the sections addressing ear and other sense organs are part
of the overall revision of the rating schedule based on
medical advances, etc., rather than representing liberalizing
interpretations of regulations." Consequently, the change
has no effect on the outcome of this claim. See Edenfield v.
Brown, 8 Vet. App. 384 (1995). Moreover, the Board notes
that the veteran was specifically advised of the change to
the regulations. The Board finds, therefore, that it may
proceed with a decision in this case without prejudice to the
veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).
The assignment of disability ratings for hearing impairment
is derived by a mechanical application of the rating schedule
to the numeric designations assigned after audiometric
evaluations are rendered. See Lendenmann v. Principi, 3 Vet.
App. 345 (1992) Prior to June 10, 1999, the severity of
hearing loss was determined by comparison of audiometric test
results with specific criteria set forth at 38 C.F.R. § 4.85,
Part 4, DC 6100 through 6110 (1998). Effective June 10,
1999, the severity of hearing loss continues to be determined
by comparison of audiometric test results with specific
criteria set forth at 38 C.F.R. § 4.85, Part 4, DC 6100
through 6110 (2000). See 64 Fed. Reg. 25,208-209, codified
at 38 C.F.R. § 4.85-4.87 (2000). Under both the new and old
regulations, evaluations of bilateral defective hearing range
from noncompensable to 100 percent, based upon organic
impairment of hearing acuity as measured by the results of
controlled speech discrimination tests together with the
average hearing threshold level as measured by pure tone
audiometry tests in the frequencies 1,000, 2,000, 3,000 and
4,000 Hertz (cycles per second). The schedule allowed for
such audiometric test results to be translated into a numeric
designation ranging from Level I, for essentially normal
acuity, to Level XI, for profound deafness, in order to
evaluate the degree of disability from bilateral service-
connected defective hearing. The evaluations derived from
the schedule are intended to make proper allowance for
improvement by hearing aids. See 38 C.F.R. §§ 4.85-4.87
(1998); see also 38 C.F.R. § 4.85 (2000).
Under both the new and old regulations, an examination for
hearing impairment is to be performed using both a controlled
speech discrimination test and a pure tone audiometry test.
38 C.F.R. § 4.85(a) (1998); 38 C.F.R. § 4.85(a) (2000). In
the absence of a speech discrimination test, the regulations
allow for numeric designations ranging from Level I to Level
XI to be based only upon puretone averages. However, numeric
designations based solely upon puretone averages are to be
used only when an examiner certifies that the speech
discrimination test is not appropriate because of language
difficulties, inconsistent speech discrimination scores, etc.
38 C.F.R. § 4.85(c) (1998); 38 C.F.R. § 4.85(c) (2000). An
exception applies under the new regulations, which allow for
a rating specialist to determine the numeric designations
based solely upon puretone averages when the puretone
averages at each of the four specific frequencies is 55
decibels or more, regardless of whether an examiner has
certified that the speech discrimination test is not
appropriate because of language difficulties, inconsistent
speech discrimination. 38 C.F.R. § 4.86(a) (2000).
In this case, the Board has applied the criteria used for
evaluating hearing loss to the findings from the hearing
evaluations set forth above. The most recent VA audiological
evaluation in December 1999 revealed an average pure tone
threshold of 77.5 decibels in the right ear with speech
discrimination ability of 80 percent, and 80 decibels in the
left ear with speech discrimination ability of 76 percent.
These findings corresponds to level V hearing acuity in the
right ear, and level V hearing acuity in the left ear. The
point of intersection on Table VII of the rating schedule for
level V hearing in both ears, which is used to arrive at the
percentage of disability for bilateral hearing loss, reflects
that this level of hearing loss warrants a 20 percent
disability rating.
In addition, the Board notes that applying the results of the
veteran's April 1998 evaluation results in a numeric
designation of level V hearing in the right ear and level IV
hearing in the left ear. Furthermore, applying the results
of the veteran's March 1998 evaluation results in a numeric
designation of level IV hearing in the right ear and level IV
hearing in the left ear. The point of intersection of both
of these combinations on Table VII reflects that the levels
of hearing loss revealed during these examinations are both
consistent with a 10 percent evaluation.
In short, the Board has reviewed all the evidence of record,
and the objective clinical evidence does not support a
schedular evaluation greater than 20 percent for the
veteran's bilateral hearing loss disability. Thus, although
the Board believes that the veteran is sincere in his belief
that his hearing loss is more severe than the current
schedular rating assigned, we must conclude that the
preponderance of the evidence is against granting a rating in
excess of 20 percent for the veteran's service-connected
bilateral hearing loss. See Lendenmann, supra. The benefit
sought on appeal is accordingly denied.
In light of the veteran's statements, the Board has also
considered whether an increased rating is warranted on an
extraschedular basis under 38 C.F.R. § 3.321(b)(1). Such
ratings may be assigned in cases presenting unusual
disability pictures with frequent hospitalization or marked
interference with employment. In this case, the Board
believes that the regular schedular standards applied
adequately describe and provide for the veteran's disability
level. In particular, we note there is no indication in the
record that the veteran's service-connected hearing loss has
necessitated frequent hospitalizations, and he does not so
contend. In addition, the record is also devoid of any
evidence of marked interference with employment. Although
the Board recognizes that on one occasion, in January 1998,
the veteran reported that he had to quit working because of
problems with his hearing, the record reflects that he
subsequently reported during both his April 1998 and December
1999 audiological evaluations that he was still working as a
carpenter. Moreover, during his December 1999 examination,
he specifically reported that, by alternating hearing aids,
he was able to work consistently for a much longer period.
He explained that because his hearing aids would normally
quit on him after several hours, rotating between them
allowed him to work for a longer time. In light of this
evidence, the Board finds that his hearing loss disability
does not markedly interfere with his employment. Therefore,
the Board concludes that there is nothing in the record to
take this case outside the norm so as to warrant submission
for consideration of the assignment of an extraschedular
rating.
III. Entitlement to an effective date prior to December 20,
1999, for a grant of a 20 percent evaluation for bilateral
hearing loss
The regulations also provide that a veteran may receive
benefits by filing an informal claim, which is defined by
"[a]ny communication or action, indicating an intent to apply
for one or more benefits under the laws administered by the
Department of Veterans Affairs, from a claimant ... may be
considered an informal claim." 38 C.F.R. § 3.155 (2000).
Such an informal claim must identify the benefit sought; and,
upon receipt of an informal claim, if a formal claim has not
been filed, an application form will be forwarded to the
claimant for execution. If received within one year from the
date it was sent to the claimant, it will be considered filed
as of the date of receipt of the informal claim. Id.
According to the applicable law and regulation, except as
otherwise provided, the effective date of an award of
compensation based on an original claim will be the date of
receipt of the claim or the date entitlement arose, whichever
is later. 38 U.S.C.A. § 5110(a) (West 1991); 38 C.F.R. §
3.400 (2000). In the case of claims for increased
evaluations, the effective date is the date of receipt of
claim or date entitlement arose, whichever is later, except
as provided in paragraph two. 38 C.F.R. § 3.400(o)(1)
(2000). In a claim for disability compensation, the
effective date can be the earliest date as of which it is
factually ascertainable that an increase in disability had
occurred if the claim is received within 1 year from such
date; otherwise, date of receipt of claim. 38 C.F.R. §
3.400(o)(2) (2000). Thus, in cases where the increase in
disability precedes the date of claim, section 3.400(o)(2)
applies rather than paragraph one of that section. Harper v.
Brown, 10 Vet. App. 125, 126-27 (1997).
As an initial matter, the Board notes that the veteran was
awarded service connection for bilateral hearing loss and
assigned a non compensable evaluation in an April 1962 rating
decision. That decision was not appealed and became final.
The record reflects that the next communication received from
the veteran by the RO in regard to this disability was a
telephone call made on January 9, 1998. During that call,
the veteran informed the RO that he wished to file a claim of
entitlement to an increased evaluation for his service-
connected hearing loss. In a report of contact dated in
January 9, 1998, it was noted that the veteran's phone call
was being accepted as a formal claim for an increased rating.
In light of these facts, the Board believes that an earlier
effective date for the veteran's 20 percent disability rating
can be assigned if it is factually ascertainable that such an
evaluation was warranted at any time during the year prior to
January 9, 1998, pursuant to 38 C.F.R. § 3.400(o)(2); or if
entitlement to an increased rating can be shown to have
arisen at any time between January 9, 1998 and December 19,
1999, pursuant to 38 C.F.R. § 3.400(o)(1).
Having reviewed the complete record, and for the reasons and
bases set forth below, the Board finds that the preponderance
of the evidence is against the assignment of an effective
date prior to December 20, 1999, for the veteran's service-
connected bilateral hearing loss. In essence, because the
veteran's December 1999 VA audiological evaluation was the
first occasion on which his level of hearing impairment was
shown to be consistent with a 20 percent disability rating,
the Board finds that the RO properly assigned an effective
date of December 20, 1999, for his increased evaluation.
In reaching this conclusion, the Board considered the reports
of the veteran's March 1998 and April 1998 VA audiological
evaluations. However, as discussed above, applying the
results of the veteran's March 1998 evaluation results in a
numeric designation of Level IV hearing in the right ear and
level IV hearing in the left ear. When applied to Table VII,
such designations are consistent with a disability evaluation
of only 10 percent. Similarly, applying the results of the
veteran's April 1998 evaluation results in a numeric
designation of level V hearing in the right ear and level IV
hearing in the left ear. When applied to Table VII, such
designations are also consistent with only a 10 percent
evaluation. In short, the Board believes that these findings
are consistent with the 10 percent disability rating already
assigned from January 9, 1998, to December 19, 1999. We
further believe that these findings do not support the
assignment of a 20 percent disability rating prior to
December 20, 1999.
The Board has also considered the veteran's VA treatment
records. However, although the veteran's VA treatment
records reflect that he has been receiving ongoing treatment
for bilateral sensorineural hearing loss for several years,
there is no indication that he underwent any audiological
evaluations since January 9, 1997, other than the three
already discussed. Accordingly, the Board finds that these
records do not show that a 20 percent disability rating was
warranted for the veteran's bilateral hearing loss at any
time prior to December 20, 1999. Moreover, these records
also do not show that it was factually ascertainable that a
compensable disability rating was warranted at any time
during the year immediately prior to the January 9, 1998,
which was the date on which he filed his claim for an
increased evaluation.
In summary, the Board concludes that the preponderance of the
evidence is against the assignment of an effective date prior
to December 20, 1999, for the grant of a 20 percent
evaluation for bilateral hearing. The benefit sought on
appeal is accordingly denied.
ORDER
Entitlement to an increased evaluation for bilateral hearing
loss is denied.
Entitlement to an effective date prior to December 20, 1999,
for the assignment of a 20 percent disability rating for
bilateral hearing loss is denied.
K. Parakkal
Acting Member, Board of Veterans' Appeals